Task force recommends creation of state public defender’s office

A task force studying the cost of public defense costs to South Dakota counties has concluded that a state public defender’s office could ease the burden.

A seven-person office would cost the state around $1.4 million a year under a rough outline of its duties presented Monday during a virtual meeting of the Indigent Legal Services Task Force by State Court Administrator Greg Sattizahn. That investment would save counties about $1.5 million a year. 

The creation of such an office was one of the primary recommendations built from months of study that included public meetings across the state. Other ideas included a request for one-time money for cash-strapped counties and an extensive study in seven counties where little data is available on public defense costs and outcomes in court.

South Dakota set to scrutinize its approach to court-appointed attorneys

Sattizahn’s presentation about a state public defender’s office did not envision a pool of lawyers to represent defendants in local courtrooms. Instead, the office could pick up criminal appeals filed by defendants who’d been represented by county-funded lawyers at the trial level. “Ineffective assistance of counsel” is the most common appeal in criminal cases, the task force learned in previous meetings, one that can force counties to pay a new lawyer to pick apart the performance of the previous one.

A state public defender would also handle appeals in abuse and neglect cases. As with criminal cases, those involved in abuse and neglect disputes are entitled to legal representation regardless of their ability to pay for it.

A state-level office could study and recommend joint state-county funding structures, seek grants for public defense, audit bills from the private attorneys who contract with counties for indigent legal aid, and create and monitor caseloads statewide, Sattizahn said.

Task force members agreed Monday to endorse the production of a report detailing the group’s findings and outlining the framework for a state public defense office.

The details on how to pay for such an office, however, and its potential to help counties bear the financial burden of legal services were topics of considerable debate. 

Funding source, limits debated

Counties rely almost entirely on property taxes to pay for government services, and have limited freedom to increase them without voter approval. Public defense costs can be among the most difficult to cover, and there’s little counties can do to reduce them. 

Hughes County Commissioner Randy Brown, a member of the task force, said his county is looking at what to cut to fill a $1 million shortfall, and “we don’t like some of the places that we have to (look at) that are not constitutionally obligated.”

“We don’t have two to three years to get this fixed,” Brown said. “We’re going to need some sort of financial assistance starting next year.”

Sattizahn’s presentation offered fee increases for defendants and case participants as a possible funding source. It would push a required $7.50 per-case payment for public defenders to $25.50. That payment to the state is in addition to any attorney fees that might be levied by a county to recoup its hourly attorney costs. The $1 fee attached to abuse and neglect cases, meanwhile, would jump to $3.50 per case.

Lake County State’s Attorney Wendy Kloeppner addressed both the funding mechanism and the fiscal impact to counties during the meeting.

On the funding side, she said, it’s unrealistic to expect defendants to pay higher fees, given how little money the state is able to collect now. 

“A lot of defendants don’t have the money to pay those fees,” Kloeppner said. “That’s why there’s so many cases in the state collection system.”

South Dakota one of few states to saddle counties with public defense costs

Public defenders from Minnehaha and Pennington counties, two of the three with full-time public defense offices, agreed.

“Funding it on the backs of indigent people is not something I think is the right thing to do,” said Pennington County Public Defender Eric Whitcher. “And it’s certainly not going to work.”

Whitcher also suggested that the cities whose police make arrests could stand to pony up some funding for defense, as well.

Kloeppner said she agreed with that idea. She also said a state public defender’s office that only handles appeals would mostly help larger counties. Her own county doesn’t handle many appeals. 

Task force member Sen. Jim Mehlhaff, R-Pierre, said he was disappointed that the recommendations wouldn’t make a more significant dent in county budgets. He said he didn’t like the idea of moving money from cities or law enforcement to counties without identifying a new funding source, and he also worried that keeping the initial cost of defense in county hands doesn’t go far enough.

“It would be nice to see some sort of funding component and relief to the counties that are really squeezed by this in the initial court appointed attorney appointments,” Mehlhaff said.

Report to outline concerns, approaches

The task force members did agree that a state-level office for public defense was important.

The notion of additional funding outside of such an office also got a lot of play on Monday.

Task force member Will Mortenson, a Fort Pierre lawyer and the House majority leader, wondered aloud if the report ought to explore reworking the counties’ catastrophic expense fund to help smaller areas handle more of the day-to-day costs of public defense.

Perhaps the state could earmark some of those funds to cover costs above a set amount, he said, or rework the program to make the funds easier to access.

“I don’t think that we have really heard, other than Greg’s initial proposal, any actual replacements for revenue generation,” Mortenson said. 

Kloeppner and Brown each pointed out that the catastrophic expense fund has a $25,000 deductible, which is more than the price of public defense for most lower-level crimes.

Officials seek help for counties at first listening session on public defense costs

That fund doesn’t get any state support at the moment, said Kris Jacobsen of the South Dakota Association of County Commissioners. If the state pitched in, that might be a bigger help.

“It is strictly county funded – one county helps another county,” Jacobsen said. “And if we could create a hybrid of that, we’d definitely be open for discussion on that.”

Whitcher, meanwhile, suggested a possible one-time cash infusion for counties, earmarked for public defense, that might get them through the next few years as a state public defender’s office takes shape.

The potential funding sources, concerns about defendants’ ability to pay, and notes about the counties’ most significant costs all belong in the task force’s final report, said Neil Fulton, the dean of the University of South Dakota Knudson School of Law and co-chair of the task force. 

The study piece of the task force’s recommendations would involve inviting the nonprofit Sixth Amendment Center to gather and analyze data. That’s in response to the task force’s finding that the state lacks good information on what’s happening at the county level with public defense.

That study and a solid report on the task force’s findings should help lawmakers and state officials as they work to address the issues, Fulton said.

“This would be a good opportunity, to me, to throw everything conceivable about funding against the wall to at least put it out there to start that discussion, because it’s going to take some time,” Fulton said.